On February 10, 2012 the SCC released its decision in R. v. D.A.I. confirming the importance of access to justice for sexual assault complainants with intellectual and other disabilities. LEAF intervened in Coalition with the Disabled Women’s Network Canada (DAWN-RAFH) to address access to justice for women with mental disabilities (who are a group of women that are disproportionately targeted for sexual assault). LEAF-DAWN argued that the Canada Evidence Act must be interpreted in a manner consistent with equality, which in this case means ensuring that those most marginalized are heard in Court. LEAF-DAWN also addressed the discriminatory stereotypes affecting sexual assault complainants with disabilities. In the past, these women were excluded from testifying if they couldn’t explain the meaning of concepts like promise, truth and falsehood. No other category of witness is required to meet this test. LEAF and DAWN argued that women’s voices must be heard and that excluding women with mental disabilities who are able to describe their experiences of abuse, exacerbates their victimization, devalues them as human beings and allows their abusers to continue the abuse with impunity. The Court put an end to arbitrary barriers to the receipt of testimony from these women and confirmed the critical importance of their evidence to the societal goal of stopping pervasive sexual assault and prosecuting sexual offenders to justice.
D.A.I. involves an adult sexual assault complainant with an intellectual disability. She reported to a teacher that her step-father played “games” with her that involved him touching her genitals, breasts and buttocks. She gave a videotaped statement to the police and she gave evidence at the preliminary inquiry. At trial, the accused challenged the complainant’s competence to testify. Under the Canada Evidence Act, if an adult witness cannot understand the meaning of an oath or solemn affirmation, that person can still testify provided they can communicate the evidence and they promise to tell the truth.
The legal question in this appeal was whether a promise to tell the truth requires the witness to explain or demonstrate an understanding of “truth” and the promise to tell the truth. The judge in this case asked the complainant questions like “what do you think about the truth” and “if you don’t tell the truth do you go to jail”. The judge was not satisfied with the complainant’s responses to these questions and held that she was not competent to testify. The complainant’s evidence was therefore not before the Court and the accused was acquitted. The SCC allowed the appeal and ordered a new trial